Kimberly L. Zapalac v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
FILED
Mar 16 2012, 9:43 am
the defense of res judicata, collateral
estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN T. WILSON GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
GARY R. ROM
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KIMBERLY L. ZAPALAC, )
)
Appellant-Defendant/Cross-Appellee, )
)
vs. ) No. 48A02-1107-CR-762
)
STATE OF INDIANA, )
)
Appellee-Plaintiff/Cross-Appellant. )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Jr., Judge
Cause Nos. 48D03-9703-CF-121, 48D03-9709-DF-389, and 48D03-9711-CF-463
March 16, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Kimberly Zapalac committed several crimes, pled guilty to those crimes pursuant to
two plea agreements, and then absconded prior to sentencing. Accordingly, Zapalac was
sentenced in absentia. After finally being apprehended more than twelve years later, Zapalac
attempts to belatedly appeal her sentence on various grounds. On cross-appeal, the State
asserts that the trial court erred in granting Zapalac’s petition for permission to file a belated
notice of appeal, and therefore this Court is without jurisdiction to hear the appeal. We agree
with the State and dismiss the appeal for lack of jurisdiction.
Facts and Procedural History
In March of 1997, the State charged Zapalac under cause number 48D03-9703-CF-
121 with class D felony attempted obtaining a schedule III controlled substance by fraud and
class C felony obtaining a schedule III controlled substance by fraud. During a dispositional
hearing on September 22, 1997, Zapalac pled guilty as charged pursuant to an open plea
agreement. Thereafter, on September 30, 1997, the State charged Zapalac under cause
number 48D03-9709-DF-389 with four counts of class D felony check fraud. On November
24, 1997, the State charged Zapalac under cause number 48D03-9711-CF-463 with class D
felony fraud and class C felony forgery. During a dispositional hearing on December 1,
1997, Zapalac pled guilty as charged pursuant to a new open plea agreement which
encompassed all three pending cause numbers. The trial court ordered that Zapalac be held
at a women’s work release center until sentencing and set a sentencing date of December 29,
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1997. Two days later, the State filed a notice to the trial court that Zapalac had absconded
from the work release program. A warrant was issued for Zapalac’s arrest.
Zapalac subsequently failed to appear for her pre-sentence interview. A sentencing
hearing for all three cause numbers was held on December 29, 1997. Zapalac failed to
appear. Over defense counsel’s objection, the trial court sentenced Zapalac in absentia to a
total sentence of nine and one-half years imprisonment. The trial court also determined that
Zapalac had violated the conditions of the agreed-upon probation and revoked the same.
Upon defense counsel’s request, the trial court appointed appellate counsel in the event that
Zapalac wished to appeal the sentencing order. In response to defense counsel’s concern that
Zapalac would continue to abscond beyond the thirty-day time limit within which to file an
appeal, the trial court stated, “I would be happy to grant her … permission to file [a] belated
praecipe to perfect an appeal.” Tr. at 27.
More than twelve years later, on July 20, 2011, Zapalac was finally apprehended.
Zapalac filed a petition for permission to file a belated notice of appeal on July 29, 2011. In
the petition, Zapalac stated that the failure to file a timely notice of appeal was no fault of her
own because she had absconded since 1997. Zapalac also argued that the trial court had
indicated at sentencing that it would allow her to file a belated notice of appeal. That same
day, without holding a hearing, the trial court entered its order granting Zapalac’s petition for
permission to file a belated notice of appeal. This appeal and cross-appeal followed.
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Discussion and Decision
The State’s contention on cross-appeal that the trial court erred in granting Zapalac’s
petition for permission to file a belated notice of appeal is dispositive. We begin by noting
that Zapalac did not respond to the State’s allegation on cross-appeal and, therefore, we may
reverse if we find prima facie error. Prima facie error is “at first sight, on first appearance, or
on the face of it.” State v. Combs, 921 N.E.2d 846, 850 (Ind. Ct. App. 2010). Accordingly,
if we find prima facie error in the trial court’s grant of Zapalac’s petition for permission to
file a belated notice of appeal, we do not have jurisdiction over this appeal. See Impson v.
State, 721 N.E.2d 1275, 1285 (Ind. Ct. App. 2000) (trial court error in permitting a belated
praecipe for appeal results in lack of appellate jurisdiction).
Because Zapalac failed to file a timely notice of appeal, she was required to challenge
her sentence through the Post-Conviction Rules. If a defendant fails to file a notice of appeal
within thirty days as required, the right to appeal is forfeited unless sought under Post
Conviction Rule 2. See Ind. Appellate Rule 9(A)(1), -(5).1 Post-Conviction Rule 2, Section
1 provides:
(a) Required Showings. An eligible defendant convicted after a trial or
plea of guilty may petition the trial court for permission to file a belated notice
of appeal of the conviction or sentence if;
(1) the defendant failed to file a timely notice of appeal;
(2) the failure to file a timely notice of appeal was not due to the fault of
the defendant; and
(3) the defendant has been diligent in requesting permission to file a
belated notice of appeal under this rule.
1
As noted by the State, at the time of Zapalac’s sentencing, this rule was Indiana Appellate Rule 2(A).
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….
(c) Factors in granting or denying permission. If the trial court finds
the requirements of Section 1(a) are met, it shall permit the defendant to file
the belated notice of appeal. Otherwise, it shall deny permission.
A petitioner has the burden of proving by a preponderance of the evidence that she is
entitled to the relief sought. Reid v. State, 883 N.E.2d 872, 873 (Ind. Ct. App. 2008).
Therefore, in a proper petition to file a belated notice of appeal, the petitioner must
demonstrate that she is without fault and was diligent in pursuing the appeal. See id. Where,
as here, the trial court does not hold a hearing before granting a petition to file a belated
notice of appeal, the only basis for the trial court’s decision was that contained in the paper
record attached to the petition. Baysinger v. State, 835 N.E.2d 223, 224 (Ind. Ct. App. 2005).
Because we are reviewing that same paper record that was available to the trial court, we
owe no deference to the trial court and review its decision regarding the petition de novo.
See id; see also Bosley v. State, 871 N.E.2d 999, 1002 (Ind. Ct. App. 2007).
Zapalac failed to submit sufficient facts or evidence to support her motion for
permission to file a belated notice of appeal. The only fact contained in her petition is that
she did not appear at her sentencing hearing and absconded since 1997.2 We do not find that
fact to be supportive of a lack of fault on Zapalac’s part or to be a persuasive excuse for her
lack of diligence in pursuing an appeal. To the contrary, her voluntary evasion of the trial
court’s jurisdiction for more than twelve years supports just the opposite conclusion.
2
We note that Zapalac does not challenge the trial court’s decision to sentence her in absentia.
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Moreover, the trial court’s indication during sentencing that it would grant her petition for
permission to file a belated notice of appeal in no way excused Zapalac of her burden to
prove her lack of fault and her diligence in pursuing an appeal pursuant to Post Conviction
Rule 2. Zapalac did not meet that burden of proof. Accordingly, we conclude that the trial
court erred when it granted Zapalac’s motion for permission to file a belated notice of appeal,
and we dismiss her appeal for lack of appellate jurisdiction.
Dismissed.
MAY, J., and BROWN, J., concur.
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